HKSAR v. CHAN KA MING ANDY

CACC 538/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 538 OF 2003

(ON APPEAL FROM DCCC 883 OF 2003)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1. On 2 December 2003, following a trial in the District Court before Judge Chua, the applicant, aged 26, was convicted of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212. He now seeks leave to appeal against conviction.

2. The facts were very straightforward. On 24 November 2002, after Chan Chi-man (PW1) had been drinking for several hours with a friend, Mui Chung-wing ("Mui"), the two men decided to visit a brothel in Portland Street. When they arrived, the male receptionist (PW2) called for two women, and PW1 and Mui were shown into separate rooms.

3. PW1 soon became involved in an argument with the prostitute who had been shown into his room. She ran outside with a towel wrapped round her and made a call on her mobile telephone. PW1 also left the room and made a complaint to the receptionist. Soon afterwards, someone turned up who PW1 described as the "prostitute's protector" and an argument between the two men ensued. PW1 was told to dress and not to go away.

4. About ten minutes later, some men rushed upstairs. Two of them, including the prostitute's protector, came into PW1's room. PW1 was dragged outside and assaulted. He lost consciousness and only regained consciousness in hospital.

5. PW1 gave a statement to police on 1 December 2002 in which he described the prostitute's protector as a thin man aged about 23 or 24. The police suggested that PW1 should go to the vicinity of the brothel to try to identify his attacker. This idea soon met with success because about an hour later, PW1 recognized his attacker. This was allegedly the applicant who, when arrested, said nothing. He maintained his silence in interview.

6. The applicant elected not to give evidence at trial and no witnesses were called on his behalf.

Grounds of appeal

7. Against this background, essentially two complaints were raised on the applicant's behalf by Mr Burkett in the perfected grounds of appeal. These were, firstly, that the identification of the applicant as one of the two men involved in the attack on PW1 was not sufficiently reliable to give rise to a conviction unless there was other evidence to support it and, secondly, that the judge had used the applicant's failure to give evidence as supporting the identification.

8. Mr Burkett took particular exception to the judge's description of the quality of the identification as "good", bearing in mind that PW1 had consumed a considerable amount of alcohol at the time of the events giving rise to the charge, and the fact that he was eventually rendered unconscious as a result of the attack on him. Mr Burkett also relied on Mui's inability to identify the applicant at an identification parade and he took exception to the judge's rejection of the evidence given by PW2 because of her reference to him as not being an independent witness.

9. Plainly, if PW1's evidence of identification was such that it could not properly be relied upon, the case would inevitably have to fail in the absence, as here, of any supporting material. In R v Turnbull & Ors [1976] 63 Cr. App. R. 132 at 137, the English Court of Appeal in their important and frequently cited judgment set out how, in a jury trial, the jury should be warned of the special need for caution before convicting in reliance on the correctness of the identification of the defendant in their charge. The court went on to state that a trial judge should direct the jury to examine closely the circumstances in which the identification came to be made, setting out examples of the circumstances to be scrutinised.

10. These matters were considered by the judge in her Reasons for Verdict. She said, with reference to R v Turnbull (above), that she had in mind:

".... not only the possibility that this might be a case of mistaken identity, I also kept in mind a mistaken witness may be a convincing one. (PW1) was in no doubt he had identified the correct man seven days later, who he had seen twice at the brothel. He said there was enough light on the premises when he exchanged heated words with the defendant, as well as on the stairs before he lost consciousness.

13. Was he so drunk that his observation and recollection make his identification unreliable? (PW1) admits he had a lot to drink but does not seem to accept he was that inebriated. He said it was all relative.

14. His evidence indicates he had a clear recollection of everything, including seeing his friend emerge from the room briefly and telling him to go back into his room. It is not surprising, therefore, that Mui, in a subsequent (identification) parade, identified an actor.

15. I am satisfied this is not a fleeting glance situation. According to PW2, who should have witnessed everything, the earlier altercation lasted some five minutes. (Counsel for the defence) has pointed out discrepancies between PW2's evidence and (PW1's). He relies on them to show (PW1's) evidence is unreliable.

16. It was not challenged that the prostitute rushed out of the room and called her protector. I am sure when he answered the call, the argument between (PW1) and this man took place in the sitting room, as (PW1) has said, and not as PW2 said, in the bedroom.

17. I do not regard PW2 as an independent witness. I infer he had left for China to avoid having to make an identification of a man who could not have been a stranger to him. I place little weight on his evidence.

18. Examining (PW1's) evidence with care, I was satisfied the quality of his identification is good. The defendant is a thin man, aged 26. The gauntness shows in his face and that must be why (PW1) said the man who assaulted him was a thin man because they were close up to each other, face to face.

19. I accept (PW1) had not told the police, as he had exclaimed in court, the man had hollow cheeks. I do not rely on this observation.

20. I am satisfied, on the evidence in answer to the prostitute's call, the defendant had arrived and, as (PW1) says, not as PW2 remembered it, left with the woman only to return with reinforcement and beat up (PW1)." (Appeal bundle pp. 7-8)

11. The judge, in her concluding paragraph, stated that she was satisfied that PW1's recognition of the applicant and his recollection of events were "of sound quality" and that his identification could be "safely relied upon".

12. The judge in her Reasons for Verdict had considered each of the potential weaknesses in PW1's evidence. The most serious of these seems to have been the amount of drink consumed by PW1 which was given proper consideration.

13. The importance of Mui's inability to identify the applicant was indicative not so much, as the judge effectively stated, that the applicant may have been wrongly identified but rather that Mui had been given very little opportunity to see the attacker.

14. The judge was in no position to consider whether the loss of consciousness may have had any effect on PW1 and it would have been improper for her to have speculated about it. The omission, therefore, to deal with this, without expert evidence on the subject and in the absence of any suggestion that PW1 had suffered amnesia, was entirely to be expected.

15. Lastly, on this ground, the judge's comment that PW2 was not to be regarded as an independent witness who, she inferred, had gone to the Mainland in order to avoid identifying someone "who could not have been a stranger to him" was a perfectly rational observation. In any event, PW2 added little to the case.

16. This ground fails.

17. Turning to the second ground, which Mr Burkett rightly described as being stronger than the first, the contention was that the judge, in the realisation that this was a weak identification case which needed some supporting evidence to confirm what PW1 had said, referred at length to a part of the judgment in Li Defan & Another v HKSAR [2002] 1 HKLRD 527 in order "to permit the judge to utilize the failure of the applicant to give evidence as bearing on an evaluation of PW1's identifying evidence".

18. The judge, in paragraph 21 of her Reasons for Verdict, said:

"21. It is apt in the circumstances of this case to quote from the judgment of the High Court of Australia in Weissensteiner v the Queen [1993] 178 CLR 217 at 227 to 229 which Lord Hoffman in the Court of Final Appeal's judgment in Li Defan and another v HKSAR cited with approval for its 'clarity and authority' [2002] 1 HKLRD 527 at 537:

'... it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused. Of course, an accused may have reasons not to give evidence, other than that the evidence would not assist his or her case.....'"

The judge then stated that she bore this in mind. She then continued with a later passage taken from Weissensteiner v the Queen which again was cited by Lord Hoffman in Li Defan:

"The failure of the accused to give evidence is not of itself evidence. It is not an admission of guilt by conduct. It cannot be because it is the exercise of a right which the accused has to put the prosecution to its proof ... but when an accused elects to remain silent at trial, the silence cannot amount to an implied admission. The accused is entitled to take that course and it is not evidence of either guilt or innocence. That is why silence on the part of the accused at his or her trial cannot fill in any gaps in the prosecution case. It cannot be used as a makeweight. It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account and they may take it into account only for the purpose of evaluating that evidence. The fact that the accused's failure to give evidence may have this consequence is something which no doubt an accused should consider in determining whether to exercise the right to silence ... But it is not to deny the right. It is merely to recognise that the jury cannot, and cannot be required to, shut their eyes to the consequences of exercising the right." (Emphasis added) (Appeal bundle pp. 8-9)

19. Immediately after this citation, the judge went on to say in paragraphs 22 and 23 of her Reasons for Verdict:

"22. I am satisfied (PW1's) recognition and recollection are of sound quality and his identification can safely be relied on.

23. The defendant is convicted of the charge." (Appeal bundle p. 9)

20. Mr Madigan, on the respondent's behalf, asserted that the judge may well have used the applicant's failure to give evidence to bolster PW1's account of the other events described by the witnesses rather than the weight of the identification evidence. This may be, but the judge did not say so. We are in agreement with Mr Burkett that there is, at the very least, a suspicion that the judge had used the applicant's failure to give evidence to add strength to the identification evidence. In our judgment, this was not, in the circumstances of this case, a permissible course.

Conclusion

21. Accordingly, this application is allowed. Treating the hearing as the appeal, we allow the appeal and quash the conviction. An order in favour of the applicant for the costs in these appellate proceedings is made, to be taxed if not agreed.

22. Having heard the submissions of counsel, a retrial is ordered.